Notice: It's OSHA 300A Time Again!

Your OSHA 300A log for 2005 must be posted on Wednesday, February 1, 2006 and remain posted through April 30, 2006. If you have questions about your posting requirements, call or e-mail us.

We receive lots of Ask the Expert submissions and telephone calls from people coping with a Cal/OSHA citation. Often the question is asked:

Do I really need a lawyer to handle an appeal?

Each of us tends to see the solution to a problem from the vantage point of our specialty: A safety professional will think of safety surveys and training. An HR director will consider adjusting personnel policies. Risk management types will consider future potential outcomes. The old joke is pretty true: To a hammer, every problem looks like a nail.

The answer varies, considering the complexity of the alleged violations, company culture and policies, and business realities. The question makes us chuckle too. Asking a lawyer if you need a lawyer to handle a legal problem is sort of like asking a surgeon if you need an operation. It's what we do.

But the truth is that you do not have to be a lawyer to represent your company at the Cal/OSHA Appeals Board. In fact, when the Legislature created the Board thirty years ago it intended that the process be informal and employer-friendly, so that employers would not need expensive legal representation to make an effective presentation. The Board provides a guidebook and a video for non-lawyers who want to represent themselves. There also are Cal/OSHA guides of varying quality for sale on the internet. And the OSHA Institute offers a course in appeal preparation and presentation.

However, the days are gone - if they ever existed - when employers can expect a good result from just showing up and explaining how they see things. As with every other similar legal forum (think Workers' Compensation Appeals Board), decisions have piled up over the last three decades and a myriad of statutes and regulations have been enacted, all of which make it difficult for non-lawyers to succeed without a good deal of work and access to legal research tools.

Before you decide on whether to go it alone or hire counsel, consider this checklist.

First consider the citations: Are the issues clear-cut? How complicated or technical are your defenses? Do you recognize any procedural issues?

Is the dispute only over the facts? If it is just a matter of which side the judge will believe, you may not need counsel.

Do you need to research past Appeals Board decisions? Some, but not very many, are available on the Appeals Board's website. Most are only available at legal research sites like Lexis-Nexis and West's. And those sites are expensive.

Will you need expert testimony to prove your case? If so, do you understand how to qualify an expert and counter objections to his or her expertise?

Next consider your opponent: Has the case been assigned to one of Cal/OSHA's attorneys? If so, that tells you that Cal/OSHA believes the legal issues are more than routine.

Is BOI or local law enforcement investigating the incident? If a criminal investigation is on-going, the stakes are too high to not retain counsel.

Has the injured employee (or more likely, his or her attorney) petitioned the Board for party status? That is a strong indication that you face additional claims in other courts. For example, it likely that the attorney is considering filing a claim for “serious and willful misconduct” benefits at the WCAB. He or she will want to use the fact that your lost your appeal at the Cal/OSHA Appeals Board to prove their case at the WCAB.

Then consider the ramifications: If other litigation related to the Cal/OSHA citations is either threatened or on-going, you should seek advise on which of several paths to take out of the woods.

Do you need to protect investigation materials or findings?

Are there union or collective bargaining issues to consider?

Will losing the appeal have a negative effect on your public image and your customers' perceptions of your company?

How much are the proposed penalties? Is the cost of defense more important than keeping your record as clean as possible? If you are a construction company or wish to bid on a public project, a negative Cal/OSHA history can stop you at the door.

What is your potential for future violations? We are always concerned when we see citations for sections 3203 and 1509 (Illness and Injury Prevention Programs) because they are easy to write after an incident. Once you are tagged as lax you are an easier target the next time around. Likewise, a history of violations of regulations which affect your core operations (e.g., fall protection for wood framers, point of operation guarding for sheet metal shops, and HazMat training for laboratories) are dangerous to your corporate health. The penalty for a first repeat citation will be double the normal amount; a second repeat will be triple . A third repeat will be written as “willful," which can run as much as $70,000.00.

How will Cal/OSHA's abatement requirements affect your work? If you believe there was no violation in the first place, does it make sense to accept a citation which requires abatement changes which you believe are unnecessary and expensive?

Next consider the forum: As much as the Legislature wished the Cal/OSHA Appeals Board to be user-friendly, it is a system created by attorneys. The Board's judges are trained as lawyers. They follow legal rules of evidence and analysis. Cal/OSHA has about a dozen attorneys on staff to either represent the Division or to prepare District Managers to present their cases.

How much time can you devote to preparing arguments and witnesses? To researching Board decisions? How well do you understand Cal/OSHA's motivations and “hot buttons” when it comes to discussing settlement?

Finally: How angry are you? Can you look at the issues dispassionately? When you hear Cal/OSHA's representatives speak, does your blood pressure remain normal? Would you benefit from having someone else speak for you in negotiations with the Division and at the Board?

So, no, you do not have to have an attorney represent you. If you decide you do, we modestly suggest that you choose a firm with, oh say, a combined 20 years' experience in the field. After all, you wouldn't ask your dermatologist to take our your appendix. But whether you choose to retain counsel or go it alone, we wish you the very best results possible.